Florida employers with four or more employees must maintain workers’ compensation insurance or a statutorily prescribed alternative. §440.055 Florida Statutes (2015). An employer who fails to maintain the coverage may nevertheless be sued by an injured employee for workers’ compensation benefits or, in the alternative, the employee may proceed at common law to recover damages for injury or death. §440.06 Florida Statutes (2015). When sued at common law, the non-compliant employer “may not … defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.” §440.06 Florida Statutes (2015).
To limit or avoid the cost of workers’ compensation insurance, Florida employers sometimes understate payroll and/or purposely mischaracterize employees as independent contractors. Independent contractors are not employees. §440.02(15)(d).
The Florida Legislature has found that the failure of an employer to comply with the workers’ compensation coverage requirements under Chapter 440 poses an immediate danger to public health, safety, and welfare. §440.107(1) Florida Statutes (2015). It has empowered the Department of Financial Services to enforce workers’ compensation coverage requirements, including the requirement that the employer secure the payment of workers’ compensation, and the requirement that the employer provide the carrier with information to accurately determine payroll and correctly assign classification codes.
To administer its duties, the department may, among other things, issue and serve subpoenas, enter and inspect any place of business at any reasonable time for the purpose of investigating employer compliance, administer oaths and affirmations, issue and enforce stop-work orders, and levy and pursue actions to recover penalties. The department may also assess against the employer a penalty of $5,000 for each employee of that employer who the employer represents to the department or carrier as an independent contractor but who is determined by the department not to be an independent contractor as defined in §440.02.
Insurance fraud harms everyone. It should be taken seriously.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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